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Well intended, not legally sound, practically unworkable

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In a surprise move last Thursday, it was announced that the European Parliament would vote today on the Revision of the Posting of Workers Directive.

Brussels, 29 May 2018 – Speaking for tech & industry employers, Ceemet fully agrees with the aim and purpose of the revised Directive: fighting illegal employment and unfair competition. But the proposal obliging companies to pay the same remuneration package as of day 1 when sending an employee abroad, does not, in any way, live up to that ambition. Even worse, it is a missed opportunity to strengthen the Union.

Good intentions are not enough

“What did you expect?” asks Ceemet Director General Uwe Combüchen, “if the Commission is not walking the talk and include all stakeholders in a goal-oriented debate, this is what you get: a lose-lose-lose situation for the EU, workers and companies.”

If done properly, there could have been legal certainty for companies and workers. If dealt with in a pragmatic way, there could have been a practical solution with clear and honest rules regarding cross border labour mobility that are in everyone’s interest. Instead of focussing on the problems in certain specific sectors, now companies in any sector that are compliant with legislation are punished with an excessive admin burden. While companies that have not respected the rules in the past are not likely to start doing so. This is not living up to the Commission’s proper standards of ‘Better Regulation’.

It is reassuring that pragmatic business reason is not just an outsider’s opinion; various individuals, groups and stakeholders with diverse backgrounds have -unsuccessfully- called for the same.

“Delivering a Directive that is legally waterproof is what you rightfully would expect,” says Ceemet’s Posting expert Hilde Thys, “but knowing that it will be the European Court of Justice who will decide in the end that a business trip is exempted from the ‘same remuneration’ principle, is just stunning.”

Now it is up to the Member States to make the difference by implementing exceptions. Such as an explicit exclusion on the grounds that the amount of work to be done is not significant e.g. attending a meeting abroad. National employers’ organisations are willing to share their expertise and recommendations from a day-to-day business point of view.

Scope of European Labour Authority: workability

Either way, with or without Member States allowing exemptions, the administrative burden for companies will be enormous.

In the current context of the discussion on the scope of the European Labour Authority (ELA) Ceemet urges the Commission to prioritize ‘workability’. The ELA could lead the development of an ‘EU comparison calculator’, allowing companies to more easily compare the applicable remuneration packages between countries.